UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-2052

WESTFIELD INSURANCE COMPANY,

 Plaintiff – Appellant,

 v.

SISTERSVILLE TANK WORKS, INC.; ROBERT N. EDWARDS; E. JANE 

PRICE, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF 

ROBERT G. PRICE, DECEASED; DOUGLAS L. STEELE; CAROL STEELE,

 Defendants – Appellees,

 and

GARY THOMAS SANDY; PEGGY P. SANDY,

 Defendants,

 and

REAGLE & PADDEN, INC.; DAVID C. PADDEN,

 Third Party Defendants – Appellees.

Appeal from the United States District Court for the Northern District of West Virginia, at 

Wheeling. John Preston Bailey, District Judge. (5:18-cv-00100-JPB-JPM)

Argued: October 26, 2022 Decided: November 14, 2022

Before AGEE and WYNN, Circuit Judges, and MOTZ, Senior Circuit Judge.

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Question of law certified to the West Virginia Supreme Court of Appeals by unpublished 

order.

ARGUED: Brent K. Kesner, KESNER & KESNER, PLLC, Charleston, West Virginia, 

for Appellant. Ryan Paul Orth, CASEY & CHAPMAN, PLLC, Wheeling, West Virginia; 

Zachary Benjamin Pyers, REMINGER CO., L.P.A., Columbus, Ohio; David Belknap 

Lunsford, HARTLEY LAW GROUP, PLLC, Wheeling, West Virginia, for Appellees. ON 

BRIEF: Ernest G. Hentschel, II, KESNER & KESNER, PLLC, Charleston, West 

Virginia, for Appellant. Patrick S. Casey, Sandra M. Chapman, CASEY & CHAPMAN, 

PLLC, Wheeling, West Virginia, for Appellee Sistersville Tank Works, Inc. Kenton H. 

Steele, REMINGER CO., L.P.A., Columbus, Ohio, for Appellees Reagle and Padden, Inc. 

and David C. Padden.

ORDER

PER CURIAM:

Appellant, Westfield Insurance Company, brought this action under the Declaratory 

Judgment Act, 28 U.S.C. § 2201, and W. Va. Code § 55-13-1 et seq. Westfield asked the 

district court to determine whether it owes insurance coverage under West Virginia law to 

Sistersville Tank Works (STW) for three state tort claims brought against STW. J.A. 28.

The state tort claims at issue were brought by Robert N. Edwards, Deborah S. 

Edwards, E. Jane Price, Douglas Steele, and Carol Steele (collectively the “Claimants”). 

The Claimants allege that they developed latent illnesses as a result of exposure to 

chemicals that leaked from tanks manufactured by STW. Each of their illnesses was 

diagnosed between 2014 and 2016, but allegedly caused by hazardous chemical exposure 

dating back to the 1960s. 

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Westfield provided some form of coverage to STW between 1985-2010. The 

federal district court ordered summary judgment in favor of STW, finding that Westfield 

owed STW coverage under the 1985-1989 policies. Westfield Ins. Co. v. Sistersville Tank 

Works, 484 F. Supp. 3d 283, 295-97 (N.D.W. Va. 2020). Because coverage existed under 

those policies, the district court held that the issue of coverage under later policies was 

moot. Id. at 297. 

Westfield challenges the district court’s ruling on appeal. Central to its contentions, 

Westfield argues that the district court applied the wrong theory to determine when 

insurance coverage was triggered under West Virginia law. Finding no controlling 

appellate decision, constitutional provision, or statute of West Virginia resolving the 

determinative issue in this matter, we certify the following question of law to the West 

Virginia Supreme Court of Appeals pursuant to the Uniform Certification of Questions of 

Law Act, W. Va. Code § 51-1A et seq.:

At what point in time does bodily injury occur to trigger insurance coverage 

for claims stemming from chemical exposure or other analogous harm that 

contributed to development of a latent illness?

This Court acknowledges that the West Virginia Supreme Court of Appeals may 

reformulate this question. See W. Va. Code § 51-1A-4. In accordance with the requirement 

in W. Va. Code § 51-1A-6, we identify the names and addresses of counsel of record and 

unrepresented parties as follows: (1) Counsel of record for Appellant Westfield Insurance 

Company is Brent K. Kesner and Ernest Glen Hentschel, II, Kesner & Kesner, PLLC, 112 

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Capitol Street, Charleston, WV 25329; (2) Counsel of record for Appellee STW is Patrick 

Shannon Casey, Sandra Marie Chapman, and Ryan Paul Orth, Casey & Chapman, PLLC, 

1140 Chapline Street, Wheeling, WV 26003; (3) Counsel of record for Appellees Reagle 

& Padden, Inc. and David C. Padden is Zachary Benjamin Pyers, Reminger Co. LPA, Suite 

800, 200 Civic Center Drive, Columbus, OH 43215; and (4) Counsel of Record for 

Appellees Robert Edwards, Jane Price, Douglas Steele, and Carol Steele is David Belknap 

Lunsford, Hartley Law Group, PLLC, 7 Pine Avenue, 2001 Main Street, Wheeling, WV 

26003. 

I.

West Virginia law provides that a certification order must contain “the facts relevant 

to the question, showing fully the nature of the controversy out of which the question 

arose.” W. Va. Code § 51-1A-6. Accordingly, we set forth those facts below.

STW is currently defending itself against three West Virginia state tort claims 

alleging that negligence in manufacturing its products contributed to latent illnesses 

suffered by the Claimants. Each of the Claimants was diagnosed with their latent illness 

between 2014 and 2016. However, they each allege that decades of exposure to hazardous 

chemicals in STW-manufactured tanks caused their recently-diagnosed illnesses. 

Westfield Insurance Company acknowledges that it insured STW under several 

policies from 1989-2010. The district court also found that it provided insurance to STW 

from 1985-1989, although Westfield contests that finding. See Westfield Ins. Co., 484 F. 

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Supp. 3d at 295-97. It is uncontested that Westfield did not provide insurance to STW in 

2014-2016, the years that the Claimants’ illnesses were diagnosed. 

Critical to determination of the question of whether Westfield owes coverage to 

STW is when bodily injury occurs under the insurance policies so as to trigger coverage 

for a latent bodily injury or illness. The district court and the parties here acknowledge 

that this is a question of West Virginia state law that has yet to be addressed by the West 

Virginia Supreme Court of Appeals. See Westfield Ins. Co., 484 F. Supp. 3d at 295. 

At least four trigger of coverage theories can be employed to determine whether 

latent bodily injury or property damage has occurred within an insurance policy period. Id. 

at 294. These theories are “(1) exposure trigger, (2) injury-in-fact trigger, (3) manifestation 

trigger, and (4) continuous or multiple trigger.” Id. Westfield argues that the manifestation 

theory of coverage should apply, while STW argues for application of the continuous 

theory of coverage. The West Virginia Supreme Court of Appeals could apply any one of 

these theories in the context of latent illness claims.

The district court applied a continuous coverage theory to this case, determining 

that any policy in place throughout the alleged period of harm was triggered by these 

claims. Westfield Ins. Co., 484 F. Supp. at 295. The court held that Westfield owed 

coverage to STW under the 1985-1989 policies. Id. at 296. Finding coverage under those 

policies, the court determined that evaluating coverage under the 1989-2010 policies is 

now moot. Id. at 297. 

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Westfield challenges several aspects of the district court judgment. First, Westfield 

argues that the district court erred in applying the continuous trigger coverage theory, 

instead of the manifestation theory, to find coverage under any of these policies. Westfield 

also contends that the district court erred in failing to decide the question of coverage under 

the 1989-2010 policies and in considering the 1985-1989 policies, because they were not 

properly before the court. 

II.

Lower courts applying West Virginia law that have previously considered the first 

question—the coverage trigger question—have reached different outcomes. 

The district court relied on two West Virginia circuit court opinions to apply the 

continuous trigger theory of coverage. See U.S. Silica Co. v. Ace Fire Underwriters Ins. 

Co., 2012 LEXIS 4449 (W. Va. Cir. Nov. 27, 2017); Wheeling Pittsburgh Corp. v. Am. 

Ins. Co., Civil Action No. 93-C-340, 2003 WL 23652106 (W. Va. Cir. Oct. 18, 2013).

Federal district courts in West Virginia, however, have concluded that West 

Virginia law calls for application of the manifestation theory in similar contexts. See State 

Auto Prop. & Cas. Ins. Co. v. H. E. Neumann Co., 2016 WL 5380925 (S.D.W. Va. Sept. 

23, 2016); Westfield Ins. Co. v. Mitchell, 22 F. Supp. 3d 619 (S.D.W. Va. 2014).

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III.

Several factors counsel in favor of certification in this case. There is no controlling 

West Virginia precedent guiding the choice of trigger of coverage theory. Due to the long 

history of West Virginia housing a substantial chemical industry, this question is likely to 

be a matter of exceptional importance for the State. 

The answer to this question may be determinative of coverage in this case. If the 

West Virginia Supreme Court of Appeals holds that the manifestation theory of coverage 

is applicable, then there will likely be no coverage under any of Westfield’s policies. If, 

on the other hand, the West Virginia Supreme Court of Appeals finds the continuous 

coverage theory or some other theory applies, this court may need to determine whether 

the district court otherwise erred in finding coverage under the 1985-1989 policies and 

whether the district court properly determined that coverage under the 1989-2010 policies 

was moot. 

IV.

Accordingly, pursuant to the privilege made available by W. Va. Code § 51-1A-3, 

we respectfully hereby ORDER: (1) that the question stated above be certified to the West 

Virginia Supreme Court of Appeals for answer; (2) that the Clerk of this Court forward to 

the West Virginia Supreme Court of Appeals, under the official seal of this Court, a copy 

of this Order of Certification, together with the original or copies of the record before this 

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Court to the extent requested by the West Virginia Supreme Court of Appeals; and (3) that 

the Clerk of this Court fulfill any request for all or part of the record simply upon 

notification from the Clerk of the West Virginia Supreme Court of Appeals. 

QUESTION CERTIFIED

 FOR THE COURT 

 /s/ Patricia D. Connor 

 Clerk 

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